Part 38

Yet it is not so manyfest y^t y^e same acts were to be punished with death in some other sines of uncleannes, w^ch yet by y^e law of God were capitall crimes; besids other reasons, (1.) because sodomie, & also beastialitie, is more against y^e light of nature then some other capitall crimes of unclainnes, which reason is to be attended unto, as y^t which most of all made this sin capitall; (2.) because it might be co[=m]ited with more secrecie & less suspition, & therfore needed y^e more to be restrained & suppresed by y^e law; (3^ly) because ther was not y^e like reason & degree of si[=n]ing against family & posteritie in this sin as in some other capitall sines of uncleannes.

2. Quest: How farr a magistrate may extracte a confession from a delinquente, to acuse him selfe of a capitall crime, seeing Nemo tenetur prodere seipsum.

Ans: A majestrate cannot without sin neglecte diligente inquision into y^e cause brought before him. Job 29. 16. Pro: 24. 11. 12. & 25. 2. (2^ly.) If it be manifest y^t a capitall crime is committed, & y^t comone reporte, or probabilitie, suspition, or some complainte, (or y^e like,) be of this or y^t person, a magistrate ought to require, and by all due means to procure from y^e person (so farr allready bewrayed) a naked confession of y^e fact, as apears by y^t which is morall & of perpetuall equitie, both in y^e case of uncertaine murder, Deut: 21. 1. 9. and slander, Deut: 22. 13. 21; for though nemo tenetur prodere seipsum, yet by that w^ch may be known to y^e magistrat by y^e forenamed means, he is bound thus to doe, or els he may betray his countrie & people to y^e heavie displeasure of God, Levit: 18. 24. 25. Jos: 22. 18. Psa: 106. 30; such as are i[=n]ocente to y^e sinfull, base, cruell lusts of y^e profane, & such as are delinquents, and others with them, into y^e hands of y^e stronger temptations, & more bouldness, & hardnes of harte, to co[=m]ite more & worse villany, besids all y^e guilt & hurt he will bring upon him selfe. (3^ly.) To inflicte some punishmente meerly for this reason, to extracte a conffession of a capitall crime, is contrary to y^e nature of vindictive justice, which always hath respecte to a kno[=w] crime co[=m]itited by y^e person punished; and it will therfore, for any thing which can before be knowne, be y^e provocking and forcing of wrath, compared to y^e wringing of y^e nose, Pro: 30. 33. which is as well forbiden y^e fathers of y^e countrie as of y^e family, Ephe. 6. 4. as produsing many sad & dangerous effects. That an oath (ex officio) for such a purpose is no due means, hath been abundantly proved by y^e godly learned, & is well known.

Q. 3. In what cases of capitall crimes one witnes with other circomstances shall be sufficiente to convince? or is ther no conviction without 2. witneses?

Ans: In taking away y^e life of man, one witnes alone will not suffice, ther must be tow, or y^t which is instar; y^e texts are manifest, Numb: 35. 30. Deut: 17. 6. & 19. 15. 2^ly. Ther may be conviction by one witnes, & some thing y^t hath y^e force of another, as y^e evidencie of y^e fact done by such an one, & not an other; unforced confession when ther was no fear or danger of suffering for y^e fact, hand writings acknowledged & confessed.

JOHN REYNOR.

[246] _M^r. Partrich his writing, in ans: to y^e questions._

What is y^t sodomiticall acte which is to be punished with death?

Though I conceive probable y^t a voluntary effusion of seed per modum concubitus of man with man, as of a man with woman, though in concubitu ther be not penetratio corporis, is y^t sin which is forbiden, Levit: 18. 22. & adjudged to be punished with death, Levit: 20. 13. because, though ther be not penetratio corporis, yet ther may be similitudo concubitus muliebris, which is y^t the law specifieth; yet I dar not be con-[EK] (1.) because, Gen: 19. 5. y^e intended acte of y^e Sodomits (who were y^e first noted maisters of this unnaturall act of more then brutish filthines) is expressed by carnall copulation of man with woman: Bring them out unto us, y^t we may know them; (2^ly.) because it is observed among y^e nations wher this unnaturall unclainnes is co[=m]ited, it is w^th penetration of y^e body; (3^ly.) because, in y^e judiciall proceedings of y^e judges in England, y^e indict: so rune (as I have been informed).

Q. How farr may a magistrat extracte a confession of a capitall crime from a suspected and an accused person?

Ans. I conceive y^t a magistrate is bound, by carfull examenation of circomstances & waighing of probabilities, to sifte y^e accused, and by force of argumente to draw him to an acknowledgment of y^e truth; but he may not extracte a confession of a capitall crime from a suspected person by any violent means, whether it be by an oath imposed, or by any punishmente inflicted or threatened to be inflicted, for so he may draw forth an acknowledgmente of a crime from a fearfull i[=n]ocente; if guilty, he shall be compelled to be his owne accuser, when no other can, which is against y^e rule of justice.

Q. In what cases of capitall crimes one witnes with other circomstances shall be sufficente to convicte; or is ther no conviction without two witnesses?

Ans: I conceive y^t, in y^e case of capitall crimes, ther can be no safe proceedings unto judgmente without too witnesses, as Numb: 35. 30. Deut: 19. 15. excepte ther can some evidence be prodused as aveilable & firme to prove y^e facte as a witnes is, then one witnes may suffice; for therin y^e end and equitie of y^e law is attained. But to proceede unto sentence of death upon presumptions, wher probably ther may subesse falsum, though ther be y^e testimony of one wittnes, I supose it cannot be a safe way; better for such a one to be held in safe custodie for further triall, I conceive.

RALPH PARTRICH.

_The Answer of M^r. Charles Chancy._

An contactus et fricatio us[q~] ad seminis effusi[=o]nem sine penetratione corporis sit sodomia morte plectenda?

Q. The question is what sodomiticall acts are to be punished w^th death, & what very facte committed, (ipso facto,) is worthy of death, or if y^e facte it selfe be not capitall, what circomstances concuring may make it capitall. The same question may be asked of rape, inceste, beastialitie, unnaturall sins, presumtuous sins. These be y^e words of y^e first question.

Ans: The answer unto this I will lay downe (as God shall directe by his word & spirite) in these following conclusions: (1.) That y^e judicials of Moyses, that are appendances to y^e morall law, & grounded on y^e law of nature, or y^e decalogue, are i[=m]utable, and ppetuall, w^ch all orthodox devines acknowledge; see y^e authors following. Luther, Tom. 1. Whitenberge: fol. 435. & fol. 7. Melanethon, in loc: com loco de conjugio. Calvin, 1. 4. Institu. c. 4. sect. 15. Junious de politia Moysis, thes. 29. & 30. Hen: Bulin: Decad. 3. sermo. 8. Wolf: Muscu. loc: com: in 6. precepti explicaci: Bucer de regno Christi, 1. 2. c. 17. Theo: Beza, vol: 1. de hereti: puniendis, fol. 154. Zanch: in 3. praecept: Ursin: Pt. 4. explicat. contra John. Piscat: in Aphorismi Loc. de lege dei aphorism. 17. And more might be added. I forbear, for brevities sake, to set downe their very words; this being y^e constante & generall oppinion of y^e best devines, I will rest in this as undoubtedly true, though much more might be said to confirme it.

2. That all y^e si[=n]es mentioned in y^e question were punished with death by y^e judiciall law of Moyses, as adultry, Levit: 20. 10. Deut: 22. 22. Esech: 16. 38. Jhon. 8. 5. which is to be understood not only of double adultrie, when as both parties are maried, (as some conceive,) but whosoever (besids her husband) lyes with a married woman, whether y^e man be maried or not, as in y^e place, Deut: 22. 22. or whosoever, being a maried man, lyeth with another woman (besids his wife), as P. Martire saith, loc: com: which in diverce respects maks y^e sine worse on y^e maried mans parte; for y^e Lord in this law hath respect as well to publick honesty, (the sin being so prejudicall to y^e church & state,) as y^e private wrongs (saith Junious). So incest is to be punished with death, Levit: 20. 11. 22. Beastiality likwise, Lev: 20. 15. Exod: 22. 19. Raps in like maner, Deut: 22. 25. Sodomie in like sort, Levit: 18. 22. & 20. 13. And all presumptuous sins, Numb: 15. 30. 31.

3. That y^e punishmente of these foule sines w^th death is grounded on y^e law of nature, & is agreeable to the morall law. (1.) Because y^e reasons a[=n]exed shew them to be perpetuall. Deut. 22. 22. So shalt thou put away evill. Incest, beastiality, are caled confusion, & wickednes. (2.) Infamie to y^e whole humane nature, Levit: 22. 12. Levit: 18. 23. Raps are as murder, Deut: 22. 25. Sodomie is an abomination, Levit: 22. 22. [247] No holier & juster laws can be devised by any man or angele then have been by y^e Judg of all y^e world, the wisdome of y^e Father, by whom kings doe raigne, &c. (3.) Because, before y^e giving of y^e Law, this punishmente was anciently practised, Gen: 26. 11. 38. 29. 39. 20. & even by the heathen, by y^e very light of nature, as P. Martire shews. (4^ly.) Because y^e land is defiled by such sins, and spews out y^e inhabitants, Levit: 18. 24, 25. & that in regard of those nations y^t were not acquainted w^th the law of Moyses. 5. All y^e devins above specified consent in this, that y^e unclean acts punishable with death by y^e law of God are not only y^e grose acts of uncleannes by way of carnall copulation, but all y^e evidente attempts therof, which may appeare by those severall words y^t are used by y^e spirite of God, expressing y^e sins to be punished with death; as y^e discovering of nakednes, Levit: 18. 20. which is retegere pudenda, as parts p^r euphemismum (saith Junius), or detegere ad cubandum (saith Willett), to uncover y^e shamefull parts of y^e body (saith Ainsworth), which, though it reaches to y^e grose acts, yet it is plaine it doth comprehend ye other foregoing immodest attempts, as contactum, fricationem, &c.; likwise ye phrase of lying with, so often used, doth not only signifie carnall copulation, but other obscene acts, p^{r}ceding y^e same, is implyed in Pauls word [Greek: arsenokoitai], 1. Cor: 6. 9. & men lying with men, 1. Tim: 1. 9. men defiling them selves w^th mankind, men burning with lust towards men, Rom: 1. 26. & Levit: 18.[EL] 22. sodom & sin going after strange flesh, Jud: v. 7. 8. and lying with mankind as with a woman, Levit: 18. 22. Abulentis says y^t it signifies omnes modos quibus masculus masculo abutatur, changing y^e naturall use into y^t which is against nature, Rom: 1. 26. arrogare sibi cubare, as Junius well translats Levit: 20. 15. to give consente to lye withall, so approaching to a beast, & lying downe therto, Levit: 20. 16. ob solum conatu[EM] (saith Willett) or for going about to doe it. Add to this a notable speech of Zepperus de legibus (who hath enough to end controversies of this nature). L. 1. he saith: In crimine adulterii voluntas (understanding manifeste) sine effectu subsecuto de jure attenditur; and he proves it out of good laws, in these words: Solicitatores[EN] alie[=n]um nupti[=a]m item[q~] matrimon[=i]um interpellatores, etsi effectu sceleris potiri non possunt, propter voluntatem tamen perniciosae libidinis extra ordinem puniuntur; nam generale est quidem affect[=u] sine effectu [non] puniri, sed contrarium observatur in atrocioribus & horum similibus.

5. In concluding punishments from y^e judiciall law of Moyses y^t is perpetuall, we must often p^{r}ceed by analogicall proportion & interpretation, as a paribus similibus, minore ad majus, &c.; for ther will still fall out some cases, in every co[=m]one-wealth, which are not in so many words extante in holy write, yet y^e substance of y^e matter in every kind (I conceive under correction) may be drawne and concluded out of y^e scripture by good consequence of an equevalent nature; as, for example, ther is no express law against destroying conception in y^e wombe by potions, yet by anologie with Exod: 21. 22, 23. we may reason y^t life is to be given for life. Againe, y^e question, An contactus & fricatio, &c., and methinks y^t place Gen: 38. 9. in y^e punishmente of Onans sin, may give some cleare light to it; it was (saith Pareus) beluina crudelitas quam Deus pari loco cum parricidio habuit, nam semen corrumpere, quid fuit aliud quam hominem ex semine generandum occidere? Propterea juste a Deo occisus est. Observe his words. And againe, Discamus quantopere Deus abominetur omnem seminis genitalis abusum, illicit[=a] effusionem, & corruption[=e], &c., very pertinente to this case. That allso is considerable, Deut: 25. 11, 12. God comanded y^t, if any wife drue nigh to deliver her husband out of y^e hand of him y^t smiteth him, &c., her hand should be cutt off. Yet such a woman in y^t case might say much for her selfe, y^t what she did was in trouble & perplexitie of her minde, & in her husbands defence; yet her hand must be cutt of for such impuritie (and this is morall, as I conceive). Then we may reason from y^e less to y^e greater, what greevous sin in y^e sight of God it is, by y^e instigation of burning lusts, set on fire of hell, to proceede to contactum & fricationem ad emissionem seminis, &c., & y^t contra naturam, or to attempte y^e grosse acts of unnaturall filthines. Againe, if y^t unnaturall lusts of men with men, or woman with woman, or either with beasts, be to be punished with death, then a pari naturall lusts of men towards children under age are so to be punished.

6. Circumstantiae variant vis e actiunes, (saith y^e lawiers,) & circomstances in these cases cannot possibly be all reck[=e]d up; but God hath given laws for those causes & cases that are of greatest momente, by which others are to be judged of, as in y^e differance betwixte chanc medley, & willfull murder; so in y^e sins of uncleannes, it is one thing to doe an acte of uncleannes by sudden temptation, & another to lye in waite for it, yea, to make a co[=m]une practise of it; this mightily augments & multiplies y^e sin. Againe, some si[=n]es of this nature are simple, others compound, as y^t is simple adultrie, or inceste, or simple sodomie; but when ther is a mixture of diverce kinds of lust, as when adultery & sodomie & [p=]^{r}ditio seminis goe togeather in y^e same acte of uncleannes, this is capitall, double, & trible. Againe, when adultrie or sodomie is co[=m]ited by [p=]fessors or church members, I fear it coms too near y^e sine of y^e preists daughters, forbidden, & comanded to be punished, Levit: 21. 9. besids y^e presumption of y^e si[=n]es of such. Againe, when uncleannes is comited with those whose chastity they are bound to [*)p]serve, this coms very nere the incestious copulation, I feare; but I must hasten to y^e other questions.

[248] 2. Question y^e second, upon y^e pointe of examination, how farr a magistrate may extracte a confession from a delinquente to accuse him selfe in a capitall crime, seeing Nemo tenetur prodere seipsum.

Ans: The words of y^e question may be understood of extracting a confession from a delinquente either by oath or bodily tormente. If it be mente of extracting by requiring an oath, (ex officio, as some call it,) & that in capitall crimes, I fear it is not safe, nor warented by Gods word, to extracte a confession from a delinquente by an oath in matters of life and death. (1.) Because y^e practise in y^e Scripturs is other wise, as in y^e case of Achan, Jos: 7. 19. Give, I pray y^e, glorie to y^e Lord God of Israll, and make a confession to him, & tell me how thou hast done. He did not compell him to sweare. So when as Johnathans life was indangered, 1. Sam. 14. 43. Saule said unto Johnathan, Tell me what thou hast done; he did not require an oath. And notable is y^t, Jer: 38. 14. Jeremiah was charged by Zedechias, who said, I will aske the a thing, hide it not from me; & Jeremiah said, If I declare it unto y^e, wilt thou not surely put me to death? impling y^t, in case of death, he would have refused to answer him. (2.) Reason shews it, & experience; Job: 2. 4. Skin for skin, &c. It is to be feared y^t those words (whatsoever a man hath) will comprehend also y^e conscience of an oath, and y^e fear of God, and all care of religion; therfore for laying a snare before y^e guiltie, I think it ought not to be donn. But now, if y^e question be mente of inflicting bodyly torments to extracte a confession from a mallefactor, I conceive y^t in maters of higest consequence, such as doe conceirne y^e saftie or ruine of stats or countries, magistrats may proceede so farr to bodily torments, as racks, hote-irons, &c., to extracte a conffession, espetially wher presumptions are strounge; but otherwise by no means. God sometims hids a sinner till his wickednes is filled up.

Question 3. In what cases of capitall crimes, one witnes with other circumstances shall be sufficente to convicte, or is ther no conviction without 2. witneses?

Deut: 19. 25. God hath given an express rule y^t in no case one witness shall arise in judgmente, espetially not in capitall cases. God would not put our lives into y^e power of any one toungue. Besids, by y^e examination of more wittneses agreeing or disagreeing, any falshood ordenarilly may be discovered; but this is to be understood of one witnes of another; but if a man witnes against him selfe, his owne testimony is sufficente, as in y^e case of y^e Amalakite, 2. Sam: 1. 16. Againe, when ther are sure & certaine signes & evidences by circumstances, ther needs no witnes in this case, as in y^e bussines of Adoniah desiring Abishage y^e Shunamite to wife, that therby he might make way for him selfe unto y^e kingdome, 1. King: 2. 23, 24. Againe, probably by many concurring circumstances, if probability may have y^e strength of a witnes, somthing may be this way gathered, me thinks, from Sallomons judging betweexte y^e true mother, and y^e harlote, 1. King. 3. 25. Lastly, I see no cause why in waighty matters, in defecte of witneses & other proofes, we may not have recourse to a lott, as in y^e case of Achan, Josu: 7. 16. which is a clearer way in such doubtfull cases (it being solemnely & religiously performed) then any other that I know, if it be made y^e last refuge. But all this under correction.

The Lord in mercie directe & prosper y^e desires of his servants that desire to walk before him in truth & righteousnes in the administration of justice, and give them wisdome and largnes of harte.

CHARLES CHANNCY.

Besids y^e occation before mentioned in these writings concerning the abuse of those 2. children, they had aboute y^e same time a case of buggerie fell out amongst them, which occasioned these questions, to which these answers have been made.

And after y^e time of y^e writ[=i]g of these things befell a very sadd accidente of the like foule nature in this govermente, this very year, which I shall now relate. Ther was a youth whose name was Thomas Granger; he was servant to an honest man of Duxbery, being aboute 16. or 17. years of age. (His father & mother lived at the same time at Sityate.) He was this year detected of buggery (and indicted for y^e same) with a mare, a cowe, tow goats, five sheep, 2. calves, and a turkey. Horrible [249] it is to mention, but y^e truth of y^e historie requires it. He was first discovered by one y^t accidentally saw his lewd practise towards the mare. (I forbear perticulers.) Being upon it examined and co[=m]itted, in y^e end he not only confest y^e fact with that beast at that time, but sundrie times before, and at severall times with all y^e rest of y^e forenamed in his indictmente; and this his free-confession was not only in private to y^e magistrats, (though at first he strived to deney it,) but to sundrie, both ministers & others, and afterwards, upon his indictmente, to y^e whole court & jury; and confirmed it at his execution. And wheras some of y^e sheep could not so well be knowne by his description of them, others with them were brought before him, and he declared which were they, and which were not. And accordingly he was cast by y^e jury, and condemned, and after executed about y^e 8. of Sept^r, 1642. A very sade spectakle it was; for first the mare, and then y^e cowe, and y^e rest of y^e lesser catle, were kild before his face, according to y^e law, Levit: 20. 15. and then he him selfe was executed. The catle were all cast into a great & large pitte that was digged of purposs for them, and no use made of any part of them.

Upon y^e examenation of this person, and also of a former that had made some sodomiticall attempts upon another, it being demanded of them how they came first to y^e knowledge and practice of such wickednes, the one confessed he had long used it in old England; and this youth last spoaken of said he was taught it by an other that had heard of such things from some in England when he was ther, and they kept catle togeather. By which it appears how one wicked person may infecte many; and what care all ought to have what servants they bring into their families.